India enacted the Child Marriages Restraint Act, 1929269 (hereafter the Restraint Act) which aimed to eliminate the ‘dangers to life and the health of a female child’270 in marriages. Initially it raised the age for marriage to 14 years which was later amended and increased in 1978 to 18 years.271 This Act created room for punishment of males above 18 years of age who contract a marriage with a child.272 But more importantly, the Act punished those that officiated the child marriage.273 The Act punished a guardian who promoted a child marriage with imprisonment of up to three months or payment of a fine.274 The Act prescribed punishment for the solemnisation of a child marriage or for those that promoted and permitted such to take place.275 It has been held that the Act was a ‘perfunctory gesture’276 and as the name suggests, it did not bring ‘drastic changes’ but only acted to restrain such marriages.277 Further, the Act was ‘regulatory’, with no preventative measure hence it did not succeed in curbing child marriages.278
Because of the weakness of the aforementioned Act, child marriages remained prevalent in India.
In 2006, India enacted the Prohibition of Child Marriage Act 2006, because child marriages were still high and the Restraint Act had failed to ‘eradicate or effectively prevent’279 child marriages.
The PCMA was aimed at amending existing laws in force in relating to child marriages and was also directed at prohibiting solemnisation of child marriages.280 The PCMA has been seen as more
267Ibid.
268Ibid 160.
269India: Child Marriages Restraint Act, 1929.
270S Deb (note 242 above) 19.
271 Ibid.
272India: The Prohibition of Child Marriage Act, No. 6 of 2007, section 3.
273Ibid section 5.
274Ibid section 6.
275 D Bharti (note 235 above) 26.
276D Ray ‘Child marriage and the law” 2015 4 NALSAR University of Law, Hyderabad, available at http://www.researchgate.net/publication/228226362_Child_Marriage_and_the_Law, accessed on 22 November 2015.
277 D Bharti(note 235 above) 26.
278 Ibid.
279S Deb (note 242 above) 21.
280Ibid.
40 progressive as it directly prohibits rather than restrain child marriages.281 PCMA is a ‘territorial law’ which means that it applies to all Indians282 and it is a uniform piece of legislation that applies to all Indian communities.283
4.3.1 Relevant Provisions in the Prohibition Act of 2006.
(i) The Act allows a petition to be filed for annulling a child marriage at the choice of either party to the child marriage.284 The child marriage will be voidable at the option of either party to the marriage.285
(ii) The Act deals with issues of custody, maintenance286 and legitimacy287 of the children born out of the child marriage.
(iii) Punitive measures are found in section 9, 10 and 11 of the Act which allows for punishment of the adult male marrying a child and also lays down punishment for solemnization of a child marriage.288 The Act further makes the offence of ‘permitting and or solemnizing’ a child marriage
‘unbailable.’289 The sections reads as follows;
9. Punishment for male adult marrying a child.-
Whoever, being a male adult above eighteen years of age, contracts a child marriage shall be punishable with rigorous imprisonment which may extend to two years or with fine which may extend to one lakh rupees or with both.
10. Punishment for solemnizing a child marriage. –
Whoever performs, conducts, directs or abets any child marriage shall be punishable with rigorous imprisonment which may extend to two years and shall be liable to fine which
281 Draft National Plan of Action to Prevent Child Marriages in India available at http://wcd.nic.in/childwelfare/draftmarrige.pdf, accessed on 14 September 2015.
282 D Francavilla (note 243 above) 541.
283 P Sarkar (note 237 above).
284 Either party means the male or female party to the child marriage.
285Section 3.
3. Child marriages to be voidable at the option of contracting party being a child.
(1) Every child marriage, whether solemnized before or after the commencement of this
Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage.
286India: PCMA section 5.
287 Ibid section 6.
288 Ibid section 9, 10 and 11.
289 Ibid section 15.
41 may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.
11. Punishment for promoting or permitting solemnization of child marriages- (1) Where a child contracts a child marriage, any person having charge of the child, whether as parent or guardian or any other person or in any other capacity, lawful or unlawful, including any member of an organization or association of persons who does any act to promote the marriage or permits it to be solemnized, or negligently fails to prevent it from being solemnized, including attending or participating in a child marriage, shall be punishable with rigorous imprisonment which may extend to two years and shall also be liable to fine which may extend up to one lakh rupees: Provided that no woman shall be punishable with imprisonment.
(2) For the purposes of this section, it shall be presumed, unless and until the contrary is proved, that where a minor child has contracted a marriage, the person having charge of such minor child has negligently failed to prevent the marriage from being solemnized.
(vii) Section 12 of the Act lays down provisions dealing with what circumstances will the child marriage ‘be deemed void’. 290
(ix) Section 16291 provides for appointment of child marriage prohibition officers by the government.
(x) In section 13, Act gives judicial officers in districts the power to ‘injuct’ to prevent child marriage taking place.292
From the above, it can be seen that the PCMA has stringent penalties for individuals that violate the Act by either ‘solemnizing, promoting or permitting’ child marriages to take place. It includes
290 India: PCMA, section 22.
291Section 16. Child Marriage Prohibition Officers.-
(1) The State Government shall, by notification in the Official Gazette, appoint for the whole State, or such part thereof as may be specified in that notification, an officer or officers to be known as the Child Marriage Prohibition Officer having jurisdiction over the area or areas specified in the notification.
292Section 13. Power of court to issue injunction prohibiting child marriages. –
(1)Notwithstanding anything to the contrary contained in this Act, if, on an application of the Child Marriage Prohibition Officer or on receipt of information through a complaint or otherwise from any person, a Judicial Magistrate of the first class or a Metropolitan Magistrate is satisfied that a child marriage in contravention of this Act has been arranged or is about to be solemnized, such Magistrate shall issue an injunction against any person including a member of an organization or an association of persons prohibiting such.
42 not only the party to the marriage in its prosecutions, but those that have facilitated the marriage as well. In respect of Zimbabwe, having legislation with such provisions will be vital in preventing child marriages. The broad coverage of penalties in section 9, 10 and 11 of the Act, will also cover child marriages that are usually hidden within AIC’s as the broad requirements give room to include even their religious leaders that permit child marriages to take place in the church.
Punishment is allowed in the Act and with male offenders usually getting up to two years imprisonment and females are at most fined.293 Those that solemnize and negligently facilitate for child marriages are liable for ‘imprisonment which may extend to two years and shall be liable to fine which may extend to one lakh rupees unless he proves that he had reasons to believe that the marriage was not a child marriage.’294 The inclusion of negligence in assisting child marriages renders the Act much stronger as it covers all forms of how child marriages come about. The penalty sections of the Act are valuable, and as Odala views it, criminal sanctions may be a good way of deterring child marriages.295 Although the penalties in the Act are relevant, they will need to be implemented with additional social techniques and policies to deal with the problem of child marriages effectively.
Another very relevant feature that the Act incorporates is that of child marriage prohibition officers whose duty it is to look into child marriages within the state.296 The Act lists the duties of the child marriage prohibition officers as follows: ‘an advisory position to those that are about to solemnize a child marriage; to educate the community on child marriages; to compile and keep records and statistics on child marriages and to monitor progress on prevention of child marriages.’297 This is an innovation, something that Zimbabwe can adopt as a means of prevention of child marriages.
293C Burris (note 65 above) 161.
294 India: PCMA section 10.
295V Odala (note 146 above).
296 India: PCMA section 16 (3).
297 Ibid section 16.
43 The Act also creates a statutory duty to create awareness298 on the adverse consequences that child marriages carry299 a vital strategy to prevent child marriages. Although much of the effectiveness of this section relies on resources and budget allocations, it is a strong provision that can be adopted and adapted to local needs. If it is adopted, there is need to research into the budgetary and financial issues that are related herewith, something this paper does not cover.